What If Your Divorce Mediator Doesn't Know Bupkes?

Fifty percent of you will one day divorce. I know that’s not happy news. It’s just the statistic. As Seth Rogan says in the shamefully overlooked 50/50, “if you were a casino game, you’d have the best odds in the house.”

Many mediators, maybe even most, don’t think much of their colleagues’ abilities. That’s not surprising. Most divorce mediators are lawyers and small is the percentage of attorneys who thinks the rest of the profession is any damn good.

Even if you’re not a lawyer seeking out the services of a mediator to help you settle litigation – but one of the increasing number of people who skip the lawyer altogether and go straight to a mediator to conclude a failing marriage – there’s good advice here for you as well.

Mr. Young’s advice is useful whenever you reach a bargaining impasse, whether you’re negotiating with the assistance of a third-party “neutral” or not.

Gather Information

Mr. Young first recommends ascertaining what is causing impasse. Are there financial reasons (no money, no assets, no insurance); emotional barriers (I hate the guy); authority issues (I can’t make a deal for any more than $X and my superior is in a coma); business impediments (oy! my cash flow!); informational (they have secret information that will torpedo your position); or legal (even if they’re right on the facts, the law won’t give them what they want).

As Young advises, “with this information, you can begin to craft a negotiating strategy to sidestep the impasse.”

You might even be able to help your negotiation partner fix the problem that’s creating the impasse (“help me help you”).

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As President of the Family and Divorce Mediation Council of Greater New York, I take exception to a number of assertions in your article.

Many of the mediators I know, and I know a lot of them, are competent, smart and dedicated professionals.

Most also work with couples together, not separately, to help them understand themselves, each other and the reality they face together.

A successful mediation occurs when a mediator enables the couple to work through the detailed decision making process that divorce requires with the benefit of the correct support to ensure informed decision making.

Lawyers and accountants are advisors and sources of information as is a mediator. Ultimate decision making authority resides with the parties to the mediation.

Good mediators do not decide anything, as decision making by the mediator in mediation is antithetical to the core values of mediations.

I was very disappointed to see mediation portrayed the way you chose to in your article. If you want to learn more about the reality of mediation, please feel free to reach out.

I’m genuinely uncertain about what types of advice Mr. Young has given that you believe misrepresents the practice of mediation.

I do know that divorce mediation is largely practiced in joint session and that the mediator is often not a lawyer. It would surprise me to hear that there are no separate caucuses in divorce mediation (though, obviously, since I don’t practice it, I could well be wrong).

Of course I agree wholeheartedly that the parties, not the mediator, make the ultimate decision and I’m surprised to hear that this article led you to believe that either my opinion or Mr. Young’s is to the contrary.

As to criticism of current mediation practice – I do this all the time based upon the considerable number of mediations I audited as an LL.M student at the Straus Institute for Dispute Resolution.

As a lawyer who used the services of mediators for years before I had any mediation training whatsoever, I am unhappy to tell you that most lawyers think very little of most mediators. Now that I understand mediation practice at much greater depth, I believe that’s due to the lack of education pursued by too many people in the profession – particularly lawyers – who believe that whatever their prior life experience was (lawyer, social worker, therapist, coach) is sufficient – along with a 28-,30- or 40-hour training course to equip them with the skills necessary to do what you (and I!) say mediators are supposed to do.

I’d love to hear back from you here so that we can continue this conversation in a public space and invite more people to it.

As a blogger on negotiation and mediation, I, probably like yourself, hear from clients who have been provided with mediation services by people who are not only incompetent but unethical. To pretend that the field is filled with people who are doing their best everyday is to ignore reality. Unfortunately, research shows that the less you know about what you’re doing, the less you believe you need more education or better skills. Only those people who know what they don’t know pursue sufficient training and mentoring to become great mediators.

Thank you so much for your thoughtful reply. I really respect that you answered my comments with genuine, informed ideas that show you care about the profession as much as I do. I have so many thoughts on your comments and would welcome the opportunity to have a more thorough and nuanced conversation than this forum provides.